WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.13
WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND FOURTH AMENDMENT TO CREDIT AMENDMENT (this “Amendment”) is made and entered
into as of March 10, 2008, by and among VOLUME SERVICES AMERICA, INC., a Delaware corporation
(“VSA”), VOLUME SERVICES, INC., a Delaware corporation (“VS”), SERVICE AMERICA CORPORATION, a
Delaware corporation (“SAC”) (VSA, VS and SAC are sometimes collectively referred to herein as the
“Borrowers” and individually as a “Borrower”), CENTERPLATE, INC., a Delaware corporation
(“Holdings”), the Lenders signatory hereto, and GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
and as the Administrative Agent (the “Administrative Agent”).
Statement of Facts
A. Borrowers, Holdings, the Lenders, and the Administrative Agent are parties to that certain
Credit Agreement, dated as of April 1, 2005 , as amended by that certain First Amendment to Credit
Agreement dated as of April 15, 2005, as further amended by that certain Consent and Amendment
dated as of September 30, 2005, and as further amended by that certain Third Amendment to Credit
Agreement dated as of June 8, 2007 (as so amended, the “Credit Agreement”; capitalized terms used
but not defined in this Amendment have the meanings given in the Credit Agreement, as amended by
this Amendment), whereby the Lenders have made certain extensions of credit to Borrowers.
B. Borrowers and the other Loan Parties seek the Lenders’ consent to amend certain provisions
of the Credit Agreement as provided for herein.
C. Borrower and the Loan Parties also seek the Lenders’ waiver of any Event of Default that
would have occurred but for the amendments of the Credit Agreement provided for herein.
Statement of Terms
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment. Subject to the terms and conditions of this Amendment, including without
limitation Section 7 hereof, the Credit Agreement is hereby amended as follows which
amendment shall be retroactive to December 31, 2007:
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting the following
new definitions in proper alphabetical order:
“Canadian Cash Deposit Accounts” shall mean the deposit accounts established in Canada
by Servomation, Inc. with Royal Bank of Canada (or such other Canadian bank as may be acceptable to
the Administrative Agent) for the purpose of making capital improvements to the Vancouver
Convention Center.
“IDS Secondary Offering Expenses” shall mean an amount not to exceed $1,660,000 and
consisting of the aggregate expenses incurred by Holdings in connection with the secondary issuance
by Holdings of IDS Securities pursuant to that certain Registration Statement on Form S-3 (No.
333-141551) and the related prospectus supplement dated December 3, 2007.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the definitions
of “EBITDA” and “Net Senior Debt” and substituting in lieu thereof the following
new definitions to read in their entirety as follows:
“EBITDA” shall mean, for any Fiscal Period, consolidated net income (or loss), as the
case may be, of Holdings and its Subsidiaries determined on a consolidated basis in accordance with
U.S. GAAP for such Fiscal Period (excluding all extraordinary gains or losses), and adding back to
the extent deducted in determining such consolidated net income (or loss) for such Fiscal Period:
(a) Interest Expense, (b) Depreciation, (c) Amortization, (d) Closing Costs in an amount not to
exceed $8,000,000, (e) Tax Provisions, and (f) solely for the purpose of determining the Senior
Leverage Ratio under clause (iii) of Section 6.19 for the Monthly Fiscal Period ending December 31,
2007, January 31, 2008 or February 29, 2008, the IDS Secondary Offering Expenses, in each case for
such Fiscal Period, provided that in the event Holdings or any of its Subsidiaries makes a
Permitted Business Acquisition during such period, EBITDA for such period shall be calculated on a
pro forma basis, based on the results of such acquired person as if such Permitted Business
Acquisition had occurred on the first day of such period; and provided, further, that with respect
to any such Permitted Business Acquisition, EBITDA may be further adjusted for post-acquisition
cost savings so long as any and all such adjustments are satisfactory to the Administrative Agent
and the Administrative Agent has received from the Borrowers all supporting financial information
as the Administrative Agent may reasonably request in order to properly consider its approval of
such adjustments.
“Net Senior Debt” shall mean, as of any date, (a) all Indebtedness of Holdings and its
Subsidiaries on such date, measured on a consolidated basis (provided that with respect to the
portion thereof represented by the Revolver Commitments, such amount shall be calculated as the
weighted average principal balance of Revolving Credit Exposure outstanding during the immediately
preceding twelve Monthly Fiscal Periods), plus (b) without duplication, the principal amount of the
outstanding Term Loan, less (c) the amount of cash of Holdings and its Subsidiaries on the balance
sheet on such date in excess of $7,500,000 to the extent such excess cash consists of immediately
available, unrestricted funds in deposit accounts (which deposit accounts either (1) are swept on a
daily basis to the Concentration Account or (2) constitute Blocked Accounts or the Concentration
Account and are subject to a Control Agreement, in either case (1) or (2) above pursuant to Section
5.17 hereof, or (3) solely for the purpose of determining the Senior Leverage Ratio under clause
(iii) of Section 6.19 for the Monthly Fiscal Period ending December 31, 2007, January 31, 2008 or
February 29, 2008, constitute the Canadian Cash Deposit Accounts, excluding for all purposes of
this clause (c) all cash in the Cash Collateral Account and all cash held for the benefit of third
parties pursuant to Service Contracts other than, solely for purposes of clause (3) above, a
Service Contract with Vancouver Convention & Exhibition Centre (whether or not such cash is held in
deposit accounts in the name of Holdings or any of its Subsidiaries). “Net Senior Debt” shall not
include (i) the
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outstanding principal amount of any Holdings Subordinated Notes and any Deferred Subordinated Note
Interest, (ii) any early termination payments that would be owed if all outstanding interest rate
protection agreements, foreign currency exchange agreements or other interest or exchange rate
hedging arrangements were terminated, (iii) obligations of Holdings or any of its Subsidiaries to
make minimum payments or to provide minimum or guaranteed commissions under any Service Contract or
any reasonable and customary indemnification obligation incurred by Holdings or its Subsidiaries,
and (iv) the principal amount of Loans outstanding hereunder equal to the cumulative amount of
Consolidated Service Contract Capital Expenditures under New Service Contract B made by the Loan
Parties after the effective date of such Service Contract to the extent such Capital Expenditures
were permitted hereunder.
2. Waiver.
(a) Subject to the terms and conditions of this Amendment, including without limitation
Section 7 hereof, the Lenders hereby waive any Events of Default that may have occurred but
for the amendments set forth in Section 1 above solely as a result of any Dividends having
been paid by Holdings during any Dividend Suspension Period that may have occurred as a result of
the Senior Leverage Ratio not meeting the threshold required under clause (iii) of Section 6.19 of
the Credit Agreement for the Monthly Fiscal Period of December 2007, January 2008 or February 2008
(such Events of Default being herein collectively referred to as the “Specified Events of
Default”).
(b) The waiver provided in Section 2(a) above relates solely to the Specified Events
of Default, and nothing in this Amendment is intended (or shall be construed) to be an approval,
consent or waiver by the Lenders or the Administrative Agent of any other Default or Event of
Default or of any other covenants, terms or provisions of the Credit Agreement or of the other Loan
Documents.
3. Representations and Warranties. Each Borrower hereby represents and warrants to
the Administrative Agent and the Lenders that (a) this Amendment and the Confirmation attached
hereto have been duly authorized, executed and delivered by such Borrower and any other Loan Party
signatory thereto, (b) no Default or Event of Default has occurred and is continuing on and as of
the date of this Amendment and after giving effect to this Amendment, and (c) all of the
representations and warranties made by Holdings, Borrowers or any of the other Loan Parties in the
Credit Agreement are true and correct in all material respects on and as of the date of this
Amendment and after giving effect to this Amendment (except to the extent that any such
representations or warranties (i) expressly referred to a specific prior date, or (ii) have changed
based upon events expressly permitted by the Credit Agreement).
4. Ratification. Each Borrower hereby ratifies and reaffirms each and every term,
covenant and condition set forth in the Credit Agreement and all other documents delivered by such
Borrower in connection therewith (including without limitation the other Loan Documents to which
such Borrower is a party), effective as of the date hereof and after giving effect to this
Amendment.
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5. Release. (a) Each Loan Party, on behalf of itself and its successors, assigns, and
other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises
and forever discharges the Administrative Agent and Lenders, in their respective capacities as
Administrative Agent and Lenders under the Credit Agreement, and their successors and assigns, and
their present and former shareholders, affiliates, subsidiaries, divisions, predecessors,
directors, officers, attorneys, employees, agents and other representatives (the Administrative
Agent, each Lender and all such other Persons being hereinafter referred to collectively as the
“Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action,
suits, controversies, sums of money, accounts, bills, reckonings, damages and any and all other
claims, counterclaims, defenses, rights of set off, demands and liabilities whatsoever
(individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown,
suspected or unsuspected, both at law and in equity, which such Loan Party or any of its
successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim
to have against the Releasees or any of them for, upon, or by reason of any circumstance, action,
cause or thing whatsoever which arises at any time on or prior to the date that this Amendment is
executed by all parties, in each case solely for or on account of or relating to the Credit
Agreement, any of the other Loan Documents or the transactions thereunder or related thereto, but
not including any Claims based on (i) any unfulfilled Borrowing request that remains outstanding as
of the date of this Amendment and for which a request for Borrowing has been properly given by
Borrower Representative under the Credit Agreement but not yet funded by Lenders, or (ii) checks,
wire transfers or other matters which are ancillary to the credit transactions contemplated by the
Credit Agreement.
(b) Each Loan Party understands, acknowledges and agrees that its release set forth above may
be pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.
(c) Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which
could now be asserted or which may hereafter be discovered shall affect in any manner the final,
absolute and unconditional nature of the release set forth above.
6. Reimbursement of Expenses. Additionally, Borrowers hereby agree, on a joint and
several basis, to reimburse the Administrative Agent and the Lenders on demand for all reasonable
costs and expenses (including without limitation reasonable attorney’s fees) incurred by such
parties in connection with the negotiation, documentation and consummation of this Amendment and
the other documents executed in connection herewith and therewith and the transactions contemplated
hereby and thereby.
7. Conditions to Effectiveness. This effectiveness of this Amendment shall be
subject to satisfaction of each of the following conditions precedent:
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(a) the Administrative Agent shall have received counterparts of this
Amendment, duly executed, completed and delivered by Borrowers, the Administrative
Agent and each of the Required Lenders;
(b) the Administrative Agent shall have received evidence, in form and
substance satisfactory to the Administrative Agent, that all cash held in the
Canadian Cash Deposit Accounts has been transferred to a Blocked Account;
(c) the Administrative Agent shall have received counterparts of the
Confirmation attached to this Amendment, duly executed, completed and delivered by
each Loan Party party thereto; and
(d) the Administrative Agent shall have received payment by 3:00 P.M. (New York
time), March 14, 2008 from Borrowers of the Amendment Fee (defined below) for the
account of the Lenders that have duly executed and delivered a counterpart of this
Amendment to the Administrative Agent on or prior to 12:00 P.M. (New York time),
March 10, 2008.
8. Amendment Fee. Borrowers hereby agree to pay to each Lender that executes and
delivers a counterpart of this Amendment to the Administrative Agent on or prior to 12:00 P.M. (New
York time), March 10, 2008 (such Lender referred to herein as a “Consenting Lender”), an amendment
fee (the “Amendment Fee”) an amount equal to the sum of (1) the product of 0.20% multiplied by the
amount of such Lender’s Revolving Credit Commitment as of the date of this Amendment plus the (2)
the product of 0.20% multiplied by the outstanding principal amount of such Lender’s Term Loans as
of the date of this Amendment. Borrower shall pay the Amendment Fee in immediately available funds
to the Administrative Agent for distribution to the Consenting Lenders on or prior to 3:00 P.M.
(New York time), March 14, 2008; provided, however, that the Amendment Fee shall not be due and
payable by Borrowers (or distributed by the Administrative Agent) to Consenting Lenders unless and
until all of the conditions precedent set forth in Sections 7(a), (b) and
(c) of this Amendment shall have been satisfied. Any such Amendment Fees shall be
distributed by the Administrative Agent to Consenting Lenders within five (5) Business Days after
receipt thereof from Borrower, provided that all conditions precedent in Sections 7(a),
(b) and (c) have been satisfied.
9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
10. Severability of Provisions. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, each Borrower hereby waives any provision of law that renders
any provision hereof prohibited or unenforceable in any respect.
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11. Counterparts. This Amendment may be executed in any number of counterparts, all
of which shall be deemed to constitute but one original and shall be binding upon all parties,
their successors and permitted assigns.
12. Entire Agreement. The Credit Agreement as amended by this Amendment embodies the
entire agreement between the parties hereto relating to the subject matter hereof and supersedes
all prior agreements, representations and understandings, if any, relating to the subject matter
hereof.
13. No Other Amendments, Waivers or Amendments. Except for the amendments set forth
in Section 1 above and the waiver set forth in Section 2 above, the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force and effect.
Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord
and satisfaction of any of the Obligations or to modify, affect or impair the perfection or
continuity of the Administrative Agent’s and the Lenders’ security interests in, security titles to
or other Liens on any Collateral.
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IN WITNESS WHEREOF, the parties have caused this Waiver and Fourth Amendment to Credit
Agreement be duly executed by their respective duly authorized officers, as of the date first above
written.
| VOLUME SERVICES AMERICA, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| VOLUME SERVICES, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SERVICE AMERICA CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CENTERPLATE, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Waiver and Fourth Amendment to credit agreement]
| GENERAL ELECTRIC CAPITAL CORPORATION, | ||||||
| as a Lender and as Administrative Agent | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Waiver and Fourth Amendment to credit agreement]
| , | as a Lender | |||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
[Signature Page to Waiver and Fourth Amendment to credit agreement]
CONFIRMATION
Each of the undersigned Loan Parties hereby acknowledges, consents and agrees to the terms of
the foregoing Amendment and agrees and confirms that its obligations under each Loan Document to
which it is a party will continue in full force and effect after giving effect to such Amendment.
This day of March, 2008.
| SERVICE AMERICA CONCESSIONS CORPORATION, a Maryland corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SERVICE AMERICA OF TEXAS, INC., a Texas corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| V.S.I. OF MARYLAND, INC., a Maryland corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Waiver and Fourth Amendment to credit agreement]
| CENTERPLATE OF KANSAS, INC., a Kansas corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Waiver and Fourth Amendment to credit agreement]
